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Comments adopted by the CEACR: Curaçao

ADOPTED_BY_THE_CEACR_IN 2022

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Previous comment
Articles 2 and 5 of the Convention. Effective tripartite consultations. With respect to the content and outcome of tripartite consultations held concerning matters covered under Article 5(1) of the Convention, the Government indicates that the social partners are provided with the opportunity to provide input into the reports to be made to the ILO in relation to Conventions. Moreover, they provide their comments on an annual tripartite position paper, the “ILC Koninkrijksinstructie”, which addresses all topics on the agenda of the International Labour Conference. The Committee notes that, according to the Government’s report, the tripartite position paper is agreed upon by the Council of Ministers of the Kingdom of the Netherlands, and is discussed intensively by the Kingdom Government, which includes, in addition to the Dutch Ministers, one Minister of Curacao, a Minister of Sint Maarten and a Minister of Aruba. The Government adds that the social partners are also given the opportunity to express their views regarding the ratification of ILO Conventions, citing the ratification of the Labour Relations (Public Service) Convention, 1978 (No. 151) on 31 May 2016 as a good practice example. Furthermore, the social partners have the opportunity to express their wishes regarding the ILO Conventions to be ratified. The Government expresses the view further that dialogue and consultations between the government and the social partners is bearing fruit, indicating that the denunciation of ratified Convention and re-examination of unratified Conventions and Recommendation to which effect has yet not been given is the next step to be taken in the open and sometimes heated dialogue within this tripartite platform. In addition, the Committee notes the information provided by the Government on the framework for tripartite consultation in relation to the matters relating to international labour standards. The Committee notes that the Government does not provide any information on the content and outcome of tripartite consultations held regarding the Government’s replies to questionnaires concerning items on the agenda of the International Labour Conference. The Committee requests the Government to indicate the manner in whichtripartite consultation is carried out in connection with the preparation of the tripartite position paper prior to its finalization and discussion in the Council of Ministers. In addition, the Committee once again requests the Government to provide full, detailed and updated information on the frequency, content and outcome of tripartite consultations held on all of the matters relating to international labour standards covered by Article 5(1)(a) through (e).
Article 4. Administrative support and financing of training. The Committee notes the information provided by the Government in reply to its previous request concerning the application of this Article.
Article 6. Operation of the consultative procedures. The Government indicates that, the social partners are involved in the process of drafting the annual ILO reports, which takes place from March to August of each year. Moreover, if the social partners do not provide their responses within a reasonable period of time, government officials make arrangements to meet with them to facilitate the exchange of information. The Government adds that during these informal meetings, which take place in smaller settings, the social partners contribute practical suggestions and comments in full conformity with the requirements of the Convention. The Committee nevertheless notes that the Government does not provide any information on the outcome of these consultations or on the impact they may have on the annual report. The Committee invites the Government to provide information on the outcome and impact of the tripartite consultations held with the social partners in the preparation of the annual reports.

ADOPTED_BY_THE_CEACR_IN 2021

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In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 14 (weekly rest in industry) and 106 (weekly rest in commerce and offices) together.
Article 1 of Convention No. 14 and Article 2 of Convention No. 106. Scope of application. The Committee notes that the Labour Regulation 2000 excludes from its scope of application the following categories of workers: (i) persons working for shipping companies, and directly related to arrivals and departures of ships and persons and goods transported by such means; and (ii) employees whose gross annual income is more than 260 times the daily wage, referred to in section 8(2) of the National Ordinance Health Insurance. The Committee recalls that Convention No. 14 applies, inter alia, to workers involved in transport of passengers or goods by road, rail, or inland waterway, including the handling of goods at docks, quays, wharves or warehouses, but excluding transport by hand. It also recalls that both Conventions apply to workers irrespective of their level of earnings. The Committee requests the Government to indicate in which manner it ensures that the provisions of the Conventions are given full effect regarding the abovementioned categories of workers excluded from the Labour Regulation 2000.
Article 5 of Convention No. 14 and Article 8(3) of Convention No. 106. Compensatory rest. In previous comments, the Committee had noted that section 15 of the Labour Regulation provides that, when working on their weekly rest day, workers receive overtime pay. Noting the information provided by the Government in its report regarding the ongoing revision of the Labour Regulation 2000 (P.B. 2000 No. 67), the Committee observes that the draft revised Labour Regulation does not provide for compensatory rest in case of work during the weekly rest day either. Recalling that Article 5 of Convention No. 14 and Article 8(3) of Convention No. 106 require that workers who are deprived of their weekly rest be granted compensatory rest irrespective of any monetary compensation, the Committee requests the Government to take the necessary measures to bring the relevant provisions of the legislation in line with this requirement of the Conventions, and to provide information on any progress made in this respect.

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Article 3(1) and (2) of the Convention. Additional duties of labour inspectors. The committee notes the Government’s indication that the labour conditions section of the labour inspectorate is also in charge of ensuring compliance with the Ordinance on Work by Foreigners with regard to the need of foreign workers to hold a work permit, and that inspections related to the Ordinance resulted in 20 infringements including 8 instances referred for further prosecution. The Committee recalls that, pursuant to Article 3(1) and (2) of the Convention, the functions of the system of labour inspection shall be to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work (for example, provisions relating to hours, wages, occupational safety and health, child labour), and any further duties which may be entrusted to labour inspectors shall not be such as to interfere with the effective discharge of their primary duties to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work. The Committee requests the Government to take measures to ensure that the functions assigned to labour inspectors do not interfere with the main objective of labour inspectors. The Committee requests the Government to provide additional information regarding the role and responsibilities of labour inspectors in the application of the Ordinance on Work by Foreigners, including the time and resources of the labour inspectorate that are allocated to these responsibilities in practice, and whether the 8 infringements referred for prosecution involved prosecution of migrant workers, employers, or other entities. The Committee further requests the Government to provide information on instances where inspectors took specific action to provide migrant workers with protection of labour rights equal to those enjoyed by citizens of Curaçao.
Article 7(3). Continuous training of labour inspectors. Further to its previous comment, the Committee notes the information provided by the Government concerning the training activities provided to labour inspectors. It notes that, after recruitment, all inspectors are requested to attend courses in: law enforcement (4 months of 12 hours per week), labour laws (4 weeks of 3 hours per day), occupational safety and health (1 month of 8 hours per week), and many on-the-job training sessions. The Committee requests the Government to continue to provide information on the training given to labour inspectors, and to include information on the content, frequency, number of participants and the results achieved for each set of training sessions.
Articles 10, 11 and 16. Human and material resources of the labour inspection system. Frequency and thoroughness of inspections. In response to its previous comment, the Committee notes the information provided by the Government in its report concerning the human resources of the labour inspectorate. It notes in particular that, in 2020, these resources encompass 28 employees, including: 9 inspection officers in the section of occupational safety and health, 9 inspection officers in the section of labour conditions, 6 inspection officers in the section of community care and social facilities and 4 persons in the role of Inspector General, Secretary, Head of Operations and Operations officer. The Committee notes that, in 2020, the section of labour conditions performed 327 inspections and that the section of occupational safety performed 343 regular inspections. The Committee also takes due note of the information provided by the Government concerning the material resources of the labour inspectorate. In addition, the Committee notes the Government’s indication that, as a result of the COVID-19 pandemic, many business activities were closed during 2020 and that routine inspections were cancelled. It also notes that human resources from the labour inspectorate were diverted to different assistance tasks in response to the crisis generated by the pandemic. The Committee requests the Government to continue to provide information on the number of labour inspectors and on the number of labour inspection operations carried out. It further requests the Government to send information on the geographical distribution of labour inspectors.
Article 12. Powers of labour inspectors. Further to its previous comment, the Committee notes that section 6 of the National Ordinance of Safety, section 34 of the Labour Regulation 2000 and section 16a of the Vacation Regulation 1949 establish the powers of labour inspectors with respect to supervising compliance with the legal provisions of these pieces of legislation. The Committee requests the Government to provide specific information on the manner in which it is ensured that labour inspectors are empowered to make visits to workplaces liable to inspection without previous notice in conformity with Article 12(1)(a).
Article 13. Preventive measures in the event of a danger to the safety and health of workers. Following its previous comment, the Committee notes that section 2(3) of the National Ordinance of Safety provides that the Executive Council or the official appointed by him for that purpose shall be authorized to stop work in establishments where the regulations provided by or pursuant to this national ordinance are not observed and in cases where persons are directly endangered by such work. The Committee requests that the Government provide data on preventive measures that have been adopted when labour inspectors had reasonable cause to believe that defects in workplaces constituted a threat to the health or safety of workers (Article 13(1)). The Committee also requests the Government to provide information on preventive measures adopted with immediate executory force in the event of imminent danger to the health or safety of workers (Article 13(2)).
Article 14. Notification of occupational accidents and diseases to the labour inspectorate. Further to its previous request, the Committee notes that section 2(7) of the National Ordinance of Safety provides that the head or administrator of the enterprise shall immediately inform the labour inspection officers of any accidents. It also notes the Government’s indication that Social Insurance Bank is in charge of establishing cases of occupational diseases. The Committee requests the Government to provide information on the manner in which it is ensured that occupational diseases are notified to the labour inspectorate. The Committee also requests the Government to take measures to ensure the collection and publication of statistical information on occupational accidents and diseases, in conformity with Article 21(g) of the Convention.
Articles 17 and 18. Effective enforcement and adequate penalties. The Committee requests the Government to indicate the measures taken, in law and in practice, to give effect to Articles 17 and 18 of the Convention, and to communicate copies of any relevant legal texts, as well as information on specific penalties assessed and implemented for violations of legal provisions.
Articles 20 and 21. Publication and communication to the ILO of annual reports on the work of the labour inspection services. In its previous comment, the Committee noted that a computerized and integrated system, including a module for the registration of labour inspection data, was expected to be implemented to enable the labour inspectorate to publish and send to the ILO annual reports with detailed statistical information. In this regard, the Committee notes the Government’s indication that the decision was made to give priority to other sectors of the Ministry and to postpone the implementation. The Committee further notes that no annual labour inspection report has been received, but that the Government provides information on the number of labour inspections and the number of violations detected. The Committee requests the Government to provide information on the possible implementation of the system enabling the registration of labour inspection data. It also requests the Government to take the necessary measures to ensure that annual labour inspection reports are prepared, published and communicated to the ILO, and that they contain information on all the subjects listed in Article 21(a)–(g).

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Article 2 of the Convention. Scope of application. The Committee notes that, according to section 1613x of the Civil Code, its provisions implementing the Convention do not apply to seafarers and public servants. The Committee notes that the National Ordinance on the Legal Status of Civil Servants that regulates the working conditions of these workers does not appear to contain provisions on the protection of wages. Under Article 2(1), however, the Convention applies to all persons to whom wages are paid or payable. The Committee therefore requests the Government to provide information on the measures implementing the Convention for seafarers and public servants in order to give full effect to the Convention.
Article 4. Partial payment of wages in kind. The Committee notes that permissible payments in kind are enumerated in section 1613n of the Civil Code and include food and lighting materials, clothing, the use of specified housing or a specific piece of land or shed, as well as company products and raw materials, on condition that these are suited as regards both their nature and quantity to the essential needs of employees and of their families. The Committee further notes that section 1614t of the Civil Code allows the payment of wages wholly in kind and that the Civil Code does not contain provisions stating that the value attributed to wages in kind is fair and reasonable. In this respect, the Committee recalls that Article 4(1) of the Convention provides that national laws or regulations may authorize the partial, and not the total, payment of wages in the form of allowances in kind and only in industries or occupations in which payment in the form of such allowances is customary or desirable because of the nature of the industry or occupation concerned. The Committee therefore requests the Government to indicate how it ensures that payments of wages in kind meet the requirements of Article 4 of the Convention.
Articles 7, 12, 13, and 15(d). Works stores. Final settlement of wages upon termination of contract. Time of payment in cash. Prohibition of payment in taverns and the sort. Maintenance of payroll records. The Committee notes that the Civil Code does not contain provisions giving effect to these Articles of the Convention. The Committee therefore requests the Government to provide detailed information on the manner in which it is ensured that: (i) the workers are free from any coercion to make use of work stores or services, and that when they use them, the goods or services are provided at fair and reasonable prices for the benefit of the workers concerned (Article 7); (ii) any outstanding payments upon the termination of a contract of employment is promptly settled (Article 12); (iii) the payment of wages where made in cash is made on working days only and that payment in taverns and the sort is prohibited (Article 13); and (iv) the national law provide for the maintenance, in all appropriate cases, of adequate records in an approved form and manner (Article 15(d).

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The Committee notes the Government’s report received in 2019, as well as the additional information received in 2021.
Articles 3, 4 and 6 of the Convention. Working conditions in the hotel and catering sector. Measures to address the COVID-19 pandemic. In response to the Committee’s previous comments initially made in 2014, the Government provides information on general measures taken during the reporting period to improve the effectiveness of labour inspection in the hotel and catering sector. The Government adds that sector-specific occupational safety and health measures are being implemented by a multidisciplinary team of the Ministry of Public Health, Ministry of Economic Development and the Labour Inspectorate. Since 2017, the team has conducted 1,600 OSH inspections and identified an unspecified number of violations, primarily in the restaurant sector. Moreover, the Complaints Bureau has received 20 complaints during the reporting period in relation to non-payment of overtime, as well as the failure of employers to provide copies of labour contracts and salary statements to their workers. With regard to the 2000 Labour Decree on Hotels, Restaurants and Casinos (the 2000 Labour Decree), the Government reports that the Platform for National Dialogue for an Advanced Curaçao (Plataforma pa Dialògo Nashonal Kòrsou ta Avansa) was organized in collaboration with the social partners, with the aim of revising and updating 21 labour laws, including the 2000 Labour Decree. The Government indicates that these revisions seek to progressively abolish provisions in the Decree that are not consistent with the letter and the spirit of the Convention and, ultimately, to set aside the 2000 Labour Decree. In particular, the Government refers to the elimination of the 48-hour workweek established in the 2000 Decree, to bring the working hours of hotel and restaurant workers into conformity with those of other workers. The Committee nevertheless notes the Government’s indication that this issue is the subject of heated dialogue, given that a shorter workweek will mean less income for hotel and restaurant sector workers, potentially leading to shortages of personnel. Consequently, alternative solutions are under consideration. With regard to the system of service charges, the Government indicates that the TRUNK or TIP (service charge) system (consisting of a 10 to 20 per cent surcharge on consumption) is used as a mean of ensuring payment of the minimum wage and remains one of the most challenging aspects of negotiating collective agreements in the sector. The Committee notes that the topic of service charges will be submitted to the Platform for National Dialogue for an Advanced Curaçao for discussion by all stakeholders. The Government indicates its intention to introduce regulations that are in conformity with the needs of the sector and simultaneously adhere to regional and international norms and best practices. With respect to the development of relevant sectoral collective agreements, the Government indicates that the sector faces many challenges to concluding collective agreements, mainly within the hotel sector. The Committee notes that the Government does not provide the information requested in its previous comments on measures taken or envisaged to develop a national policy designed to improve the working conditions of the workers in the hotel and catering sector. On the other hand, the Committee notes the supplementary information provided by the Government in its 2021 report in relation to the serious social and economic impact of the COVID-19 pandemic on the tourism sector, which has come to a complete stop during the pandemic, increasing the already excessive unemployment rate and bankrupting businesses in the sector. The Committee notes that the Government, in consultation with stakeholders, has taken emergency measures to mitigate the effects of the COVID-19 pandemic on the labour market in general and to preserve as many jobs as possible. The Committee requests the Government to provide detailed updated information on the manner in which workers employed in hotels and restaurants have been affected by the most recent response and recovery measures designed to mitigate the impact of the pandemic on the labour market. It further requests the Government to keep the Office informed of the outcome of any consultations held with respect to the revision of the service charge system, as well as of the 2000 Labour Decree on Hotels, Restaurants and Casinos, and of all future legislative developments relevant to the application of the Convention. In addition, the Committee requests the Government to provide information on any measures taken or envisaged to address the obstacles identified in the process of developing sector-specific collective agreements, particularly for the hotel and restaurant sector. The Committee expresses its firm hope that the Government will avail itself of the opportunity provided by the process of revision of 21 labour laws that is currently underway to develop a sector-specific national policy designed to improve the working conditions of the workers in the hotel and catering sector, taking into account the response and recovery measures already taken and those currently envisaged, and the current labour market situation in the sector.

ADOPTED_BY_THE_CEACR_IN 2020

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The Committee notes the Government’s first report.
Article 3 of the Convention. Worst forms of child labour. Clause (a). All forms of slavery or practices similar to slavery. 1. Sale and trafficking of children. The Committee notes the absence of information in the Government’s report on this point. It notes that section 2:239 of the Penal Code of Curaçao of 2011 prohibits trafficking in persons for the purposes of labour and sexual exploitation, and provides for a term of imprisonment of up to nine years, or a fine for the perpetrator. In cases where the victim has not reached the age of 16 years, the perpetrator is liable to a term of imprisonment of up to 12 years or a fine. In addition, aggravating penalties are provided in cases where the offence is committed by more than one person, where the offence results in serious bodily harm or threatens the life of another person, or where the offence results in death. Section 2:240 of the Penal Code prohibits using the services of victims of trafficking.
The Committee further notes in its report on the implementation of the European Social Charter of February 2020, that the Government outlined the recent sentences imposed on the perpetrators of trafficking in persons, which ranged from acquittal to suspended prison sentences of up to one year for the most severe penalties (page 26).
Given the seriousness of the offence of trafficking of children and the dissuasive effect that the penalties should have, legislation allowing for the possibility of imposing only a fine on the perpetrator of this crime does not provide a sufficiently dissuasive penalty. The Committee requests the Government to take the necessary measures to ensure that perpetrators of trafficking of children cannot be punished by a fine only, and that sufficiently effective and dissuasive sanctions are imposed in practice. The Committee also requests the Government to provide information on the application in practice of section 2:239 of the Penal Code of 2011, including the nature and number of offences relating to the trafficking of children under 18 years of age reported, the number of investigations and prosecutions carried out and the nature and number of penalties imposed.
2. Slavery, debt bondage, serfdom, forced or compulsory labour. The Committee notes that the Government’s report is silent on this matter. It notes that sections 2:241 to 2:244 of the Penal Code of 2011 prohibit slavery. Section 2:241 states that any person who engages in the slave trade or who deliberately takes part in the slave trade, either directly or indirectly, shall be liable to a term of imprisonment not exceeding 15 years or a fine. The Committee wishes to recall the importance of providing for adequate and sufficiently dissuasive sanctions in order to give effect to the provisions of the Convention, which cannot be a sufficient deterrent if they consist only of a fine. The Committee requests the Government to take the necessary measures to ensure that perpetrators of slavery cannot be punished by a fine only, and to supply information in this regard. The Committee also requests the Government to provide information on the number and nature of violations of sections 2:241 to 2:244 of the Penal Code of 2011 identified, the number of investigations and prosecutions carried out against the perpetrators, as well as the number and nature of penalties imposed. Lastly, the Committee requests the Government to indicate if any provision of its national legislation imposes penal sanctions for the illegal exaction of forced or compulsory labour of children.
Clause (b). Use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances. The Committee notes the absence of information in the Government’s report on the prohibition and elimination of the use, procuring or offering of children under the age of 18 for prostitution, for the production of pornography or for pornographic performances. It reminds the Government that, under Article 3(b) of the Convention, such activities are considered to be one of the worst forms of child labour and are therefore prohibited for children under 18 years of age. The Committee requests the Government to provide information on any provision of its national legislation prohibiting the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances. In the absence of such provision, the Committee requests the Government to indicate the measures taken or envisaged to this end.
Clause (c). Use, procuring or offering a child for illicit activities, in particular for the production and trafficking of drugs. The Committee notes that the Government’s report does not provide any information on this issue. The Committee wishes to recall that, by virtue of Article 3(c) of the Convention, the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs, constitute one of the worst forms of child labour, prohibited for children under 18 years of age. The Committee requests the Government to indicate whether any provision of its national legislation prohibits the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. If no such provision exists, the Committee requests the Government to provide information on the measures adopted or envisaged to prohibit this worst form of child labour.
Clause (d) and Article 4. Hazardous work and determination of hazardous work. The Committee notes that, pursuant to section 21(1) of the Labour Ordinance of 2000, it is prohibited to allow young people (defined as persons who have reached the age of 15 but not yet the age of 18) to perform dangerous work. An order shall be issued to determine which work shall be classified as dangerous work (section 21(2)). Section 36 of the Ordinance provides for a term of imprisonment of up to four years, a fine or both penalties for anyone who deliberately violates the above-mentioned section 21(1). The Committee requests the Government to communicate the list of hazardous types of work prohibited to young persons under the age of 18 years issued pursuant to section 21(2) of the Labour Ordinance of 2000.
Article 5. Monitoring mechanisms and application of the Convention in practice. The Government indicates that the Central Bureau for Statistics has never recorded any form of child labour. Nor has the Labour Inspection of the Ministry of Social Development Labour and Welfare encountered any cases of child labour during their duties.
The Committee notes that, according to the direct request of the Committee of 2014 on the Labour Inspection Convention, 1947 (No. 81), the Minister of Social Development, Labour and Welfare is the central authority of the labour inspection system. The head of the labour inspectorate reports directly to the Minister. Furthermore, the Committee notes that the Government states, in its report under the Working Conditions (Hotels and Restaurants) Convention, 1991 (No. 172), that in 2016 and 2017, the labour inspectorate participated in a Taskforce for Human Trafficking. The Committee requests the Government to provide information on the functioning of the labour inspectorate with regard to the worst forms of child labour, including trafficking of children. Please provide information on how and how often labour inspectors are trained on combatting child labour, especially in its worst forms. The Committee also requests the Government to continue to provide information on the number and nature of violations detected relating to the worst forms of child labour.
Article 6. Programmes of action. The Committee notes the absence of information on programmes of action to eliminate the worst forms of child labour in the Government’s report. The Committee requests the Government to provide information on any programme of action designated and implemented to eliminate the worst forms of child labour.
Article 7(2). Effective and time-bound measures. Clause (a). Preventing the engagement of children in the worst forms of child labour. Access to free basic education. The Government indicates that education is free and compulsory for children aged 6 to 18. It states that, in 2018, the primary school enrolment rate was 97 per cent and the secondary school enrolment rate was 77 per cent. The Government specifies that it has set up monitoring programmes for children aged between 12 and 18 years who are not enrolled in secondary education and who are not willing to enter the labour market, entitled “Youth Monitoring Programmes”, to ensure that the problems of these children are addressed.
The Government further indicates, in its report submitted under the Employment Policy Convention, 1964 (No. 122), that the National Development Plan (NDP) 2015–2030, which aims to facilitate sustainable development in Curaçao, focuses on five main areas, including education. The Committee encourages the Government to continue to provide information on the measures that it has taken to facilitate access to free basic education, as well as on the progress made in this regard, particularly to increase the school enrolment rate at the lower secondary level. The Committee also requests the Government to provide information on the implementation and the results of the NDP 2015–2030 in terms of education.
Clause (b). Direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration. Child victims of trafficking. The Government indicates, in its report on the implementation of the European Social Charter of February 2020, that there is a Victim Assistance Office for Victims of Trafficking in Persons and a victim referral procedure, which was updated in 2017 (pages 24–25). The Committee requests the Government to provide information on the activities of the Victim Assistance Office for Victims of Trafficking in Persons with regard to the identification, removal, rehabilitation and social integration of child victims of trafficking. It also requests the Government to supply information on the number of child victims of trafficking who have been removed and provided with assistance.
Clause (d). Identifying and reaching out to children at special risk. Refugee and migrant children. The Government indicates that migrant children have access to education, and arrangements are being made for undocumented students to receive their diploma after completing secondary education.
The Committee notes that the Situational Report of the Coordination Platform for Refugees and Migrants from Venezuela (R4V, including UN agencies) of January 2020 for Aruba and Curaçao stated that 44,500 refugees and migrants are estimated to be in Aruba and Curaçao. In addition, according to the Refugee and Migrant Response Plan (RMRP) of the R4V of July 2020, given the political, socio-economic and human rights situation in Venezuela, Venezuelans are increasingly seeking safety in Curaçao. The Committee requests the Government to continue to provide information on the measures it has taken to ensure that refugee and migrant children are integrated into the local education system, with a view to protecting them from the worst forms of child labour.

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The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). It further notes that the Government previously ratified ten Conventions on maritime labour which have been denounced following the entry into force of the MLC, 2006, for Curaçao. It notes that the Government has not submitted a declaration of acceptance of the amendments to the Code of the Convention adopted in 2014 by the International Labour Conference and is therefore not bound by these amendments. The Committee notes that the amendments adopted by the Conference in 2016 entered into force for Curaçao on 8 January 2019. Following a first review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.
Impact of the COVID-19 pandemic. The Committee takes note of the observations of the International Transport Workers' Federation (ITF) and of the International Chamber of Shipping (ICS), received by the Office on 1 October 2020 and 26 October 2020, respectively, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. Noting with deep concern the impact of the COVID-19 pandemic on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 on this issue.
Article I of the Convention, General questions on application. Implementing measures. The Committee notes that the Maritime Authority of Curaçao’s (hereinafter “MAC”) website refers to the “Kingdom Shipping Act” being applicable to all flag states of the Kingdom of the Netherlands, including Curaçao and that the implementation of shipping act instruments is however done at the national level. It indicates that “the Kingdom Shipping Act is equally applicable to all flag states of the Kingdom, including Curaçao”, and that “the Maritime legislation of Curaçao is applicable and mainly based on the legislation of the Kingdom of the Netherlands”. The Committee, however, notes that the Government has not indicated the relevant provisions of the Kingdom maritime laws and regulations that apply to Curaçao. The Committee requests the Government to provide detailed information on the laws and regulations in force which give effect to the Convention, making a distinction among the subjects addressed between those which lie within the competence of the Kingdom and those of Curaçao. The Committee also notes that the Curaçao’s Decree of the 6th June 2014, (hereinafter “the DML”) providing for general measures, containing the temporary implementation of the Maritime Labour Convention, gives effect to a number of provisions of the Convention. The Committee notes the information provided in the explanatory note of the DML that such a Decree is a temporary regulation introduced to regulate the issue of the Maritime Labour Certificates and that the Government is working on a draft, which is at an advanced stage. The Committee however notes that the draft Act was not made available to the Committee. The Committee requests the Government to take into account the comments made by this direct request and to provide detailed information on the progress made in the adoption of the draft Act implementing the requirements of the MLC, 2006, and to provide a copy of this draft Act.
Article II, paragraphs 1(f), 2, 3 and 7. Definitions and scope of application. Seafarers. National determination. The Committee notes that, according to article 3, paragraph 2 of the DML, “seafarer” means a natural person who works, in any capacity, on board a ship. While noting the Government’s indication that no cases of doubt have arisen as to whether any categories of persons are to be regarded as seafarers, the Committee observes that Instruction to Recognized Organizations (RO) No. 22 Maritime Labour Convention 2006, states that the Administration, taking into account the criteria provided in Resolution VII, considers that the following persons will not be considered as seafarers for the purpose of the MLC, 2006: (i) passengers; (ii) relatives and family of seafarers, not engaged in any activity related to the regular operations on board the ship; (iii) military personnel, surveyors, inspectors and pilots, as mentioned in article 1, part b of the Netherlands Pilots Act; (iv) persons on board ships in a port or port facility, as mentioned in article 1, sub f respectively c of the Port Security Act; (v) other persons whose occupations are not part of the regular activities on board the ship. The Committee notes that, for this last category of persons, there is no reference to the duration of their stay on board. The Committee requests the Government to provide detailed information on the categories of persons who are considered as “other persons whose occupations are not part of the regular activities on board the ship” and who are excluded from the definition of “seafarer”. It also requests the Government to provide information on the consultations required under Article II, paragraph 3 of the Convention. The Committee also notes that Instruction to RO No. 22 indicates that in case of doubt, such cases might be determined by the following procedure: at the request of the shipowner or person (to be) employed on board a ship, “the Administration may determine after consultation with the committee of ship-owners and “seafarers” organizations if a certain category of persons (shipboard position or function) is not defined as “seafarer”. The decision of the Administration will be published on the website of the MAC and formalized in the DML”. The Committee requests the Government to indicate if any additional determination as to whether any categories of persons are to be regarded as seafarers or not for the purpose of the Convention has been made on the basis of this provision.
Article II, paragraph 6 and 7. Definitions and scope of application. Ships under 200 gross tonnage. The Committee notes that Article 4, paragraph 2 of the DML provides that “[a]t the request of the Ship’s Operator, the Minister can grant a dispensation from the obligations set by and pursuant to this Decree for Curaçao ships smaller than 200 gross tonnage (GT) that do not undertake international voyages”. The Committee further notes that Article 4, paragraph 3 states that “[b]y Ministerial Regulation with general operation, rules shall be set for the assessment of a petition for dispensation, as referred to in the second paragraph, and also the costs attached to granting the dispensation”. The Committee recalls that Article II, paragraph 6 provides flexibility with respect to the application of “certain details of the Code”, that is, Standard and Guidelines, to a ship or particular categories of ships of less than 200 gross tonnage that do not voyage internationally. This flexibility can only be applied by the competent authority in consultation with the shipowners’ and seafarers’ organizations concerned for cases where it determines that it would not be reasonable or practicable to apply certain details of the Code at the present time and that the subject matter is dealt with differently by national legislation or collective agreements or other measures. The Committee underlines that paragraph 6 of Article II does not provide for the exclusion of a ship, or a category of ships, from the protection offered by the Convention. The Committee requests the Government to provide detailed information on measures currently adopted, or envisaged, in accordance with Article 4, paragraphs 2 and 3 of the DML in order to ensure that any exemption granted is limited to certain details of the Code as required by Article II, paragraph 6 of the Convention, and in consultation with the shipowners’ and seafarers’ organizations concerned.
Article III. Fundamental rights and principles. The Committee notes that the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Equal Remuneration Convention, 1951 (No. 100), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Minimum Age Convention, 1973 (No. 138) are not declared applicable to Curaçao. In accordance with its approach followed when a country has not ratified some or all of the ILO fundamental Conventions and thereby is not subject to supervision in respect of these fundamental Conventions, the Committee seeks concrete information on how the country has satisfied itself that its laws and regulations respect, in the context of the MLC, 2006, the fundamental rights referred to in Article III. The Committee therefore requests the Government to provide information on how it has satisfied itself that its laws and regulations, in the context of the MLC, 2006, respect the fundamental rights referred to in Article III, more specifically in relation to the principles contained in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Equal Remuneration Convention, 1951 (No. 100), the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the Minimum Age Convention, 1973 (No. 138).
Article VII. Consultations. The Committee notes that there does not seem to be any shipowners’ or seafarers’ association to date in Curaçao. The Committee recalls that under Article VII, any derogation, exemption or other flexible application for which the Convention requires consultations may, where representative organizations of shipowners or of seafarers do not exist within a Member, only be decided through consultation with the Special Tripartite Committee established in accordance with Article XIII of the Convention. Until a seafarers’ organization is established in Curaçao, the Committee requests the Government to have recourse to the consultative arrangement provided for in Article VII.
Regulation 1.1 and Standard A1.1, paragraph 1. Minimum age. The Committee notes that Article 13, paragraph 1 of the DML provides that “[w]hen employing Seafarers on board a ship, the Ship's Operator shall see to it that the standard A1.1 and the standard A3.2 eighth paragraph of the Convention are complied with”. The Committee however notes that the Government has not provided more detailed information on the implementing measures taken or envisaged to give effect to the various provisions of Standard A1.1. The Committee requests the Government to provide specific information on the national laws and regulations, and other measures that expressly implement all the requirements of Standard A1.1, including with regard to the prohibition of night work of seafarers under the age of 18, the exceptions to strict compliance with the night work restriction and the prohibition of hazardous work for seafarers under the age of 18. The Committee requests the Government to indicate whether it has adopted a list of hazardous work activities prohibited for seafarers under 18 years of age after consultation with the shipowners’ and seafarers’ organizations concerned as required by the Convention and, if so, to transmit a copy of such a list.
Regulation 1.2 and the Code. Medical Certificate. The Committee notes that article 13, paragraph 2 of the DML provides that “[w]hen employing a Seafarer on board a ship, the Ship's Operator shall see to it that a Seafarer possesses a valid medical certificate that complies with the standard A1.2, unless the Minister has granted a dispensation, as referred to in the eighth paragraph of the standard”. While noting that the DML requires that seafarers possess a valid medical certificate in compliance with the requirements of Standard A1.2, the Committee observes that the legislation does not provide any indication as to how the specific provisions of Standard A1.2 are implemented. The Committee requests the Government to provide detailed information on how it gives effect to the specific requirements of Standard A1.2, and how the said requirements are implemented in practice.
Regulation 1.3. Training and qualifications. The Committee notes that Article 5 of the DML provides that the qualifications must comply with the regulations applicable in Curaçao for the implementation of the STCW Convention and that the Government refers to the Manning Decree (Bemanningsbesluit Arubaanse, Curacaose en Sint Maartense zeeschepen) without however providing concise information on the content of the provisions to which reference is made. The Committee notes that the DMLC, Part I states that seafarers must have the appropriate training and qualifications, as well as a certificate accrediting their professional competences and other qualifications to perform their functions, duly issued or endorsed by the competent authority, and that the training and certification must comply with the mandatory instruments (STCW) adopted by the IMO. The Committee further notes that the Government has not provided information on the national provisions which prescribe mandatory personal safety training for all persons working on board. The Committee recalls that under Regulation 1.3, paragraph 2, seafarers shall not be permitted to work on a ship unless they have successfully completed training for personal safety on board ship. The Committee requests the Government to clarify if the implementation of Regulation 1.3 lies within the competence of the Kingdom or of Curaçao, and to specify the national provisions implementing the different requirements of Regulation 1.3.
Regulation 1.4 and the Code. Recruitment and placement. The Committee notes that the Government indicates that no private services for the placement of seafarers operate in its territory. The Committee notes that Article 14, paragraph 1(a) of the DML provides that when employing seafarers on board a ship through the mediation of a recruitment agency or a job exchange, the Ship's Operator shall make use of agencies established in a State that are affiliated to the Convention, or a bureau that has been investigated by a legal person, appointed by the Minister of the legal persons acknowledged by him, and has obtained a positive assessment, or a bureau which the Ship's Operator can prove that it complies with the Convention. Article 14, paragraph 1(b) also provides that the Ship's Operator shall establish that the bureau does not charge or has charged the Seafarer any costs for the recruitment or mediation. The Committee further notes the Government’s indication that there are around 755 seafarers who are nationals or residents or otherwise domiciled in the country. The Committee requests the Government to provide information on the manner in which those seafarers have been recruited. The Committee also requests the Government to provide information on the conditions under which complaints concerning the activities of recruitment or placement services operating on the territory of Curaçao are dealt with, and any action taken on them, as provided for under Standard A1.4, paragraph 7.
Regulation 2.1 and the Code. Seafarers’ employment agreements. The Committee notes that Article 14, paragraph 1(c) of the DML provides that, when employing seafarers through the mediation of a recruitment agency or a job exchange, the Ship's Operator shall ensure that they possess a Maritime Labour Agreement with the Bureau, which complies with Standard A2.1. The Committee also notes that Article 15, paragraph 1 of the DML provides that the Maritime Employer shall ensure that the realization and execution of a maritime contract complies with Standard A2.1. The Committee further notes that the explanatory note of the DML indicates that the emphasis on the responsibility of the Ship’s Operator is prompted by the fact that the majority of the Seafarers on board Curaçao ships do not reside in Curaçao and do not possess the Dutch nationality. The majority of seafarers are not directly employed by the Ship’s Operators, but have been made available to the Ships’ Operator by a recruitment agency or an intermediary. The employment contract is, consequently, concluded according to the law of the country where the agency is established. When designing the DML, this was taken into account by imposing a duty of care on the Ship’s Operator with respect to various aspects to verify that the agency complies with the Convention. The explanatory note also indicates that seafarers who are residents and work from Curaçao on a Curaçao ship, work on the basis of a labour contract, in accordance with Curaçao law, and fall under the scope of application of the legislation for social security. The Committee, however, observes that the Government has not provided information in relation to the implementation of the detailed requirements of Standard A2.1, nor provided an example of a seafarer’s employment agreement (SEA). The Committee recalls in particular that Standard A2.1, paragraphs 1, 4 and 5 specifically require the adoption of laws or regulations establishing respectively the requirements with respect to the form of the agreement and the signatory parties, the content of the agreement as well as the minimum notice periods for early termination of a SEA. Recalling the crucial importance of SEAs for seafarers, the Committee requests the Government to indicate the measures taken to ensure the full conformity of the national legislation with Regulation 2.1 and Standard A2.1 (signature by seafarer and shipowner, an original copy each, content of the SEA, collective bargaining agreement accessible on board if it forms all or part of the SEA, opportunity to examine and seek advice before signing, record of employment, minimum notice for early termination and shorter notice) and to provide a copy of a SEA.
Regulation 2.1 and Standard A2.1, paragraph 1(a). Seafarers’ employment agreements. Signature of seafarer and shipowner or a representative. The Committee notes that Instruction note to RO No. 22 Maritime Labour Convention 2006 provides that Curaçao has adopted a substantially equivalent measure allowing seafarers’ employment agreements (SEA) to be signed by the employer, including a temporary employment agency, and not by the shipowner or a representative of the shipowner as required by Standard A2.1, paragraph 1(a). Recalling the importance of the basic legal relationship that the Convention establishes between the seafarer and the person defined as “shipowner” under Article II of the Convention and the fact that under Standard A2.1, paragraph 1(a), every seafarer must have an original agreement that is signed by the seafarer and the shipowner or a representative of the latter (whether or not the shipowner is considered to be the employer of the seafarer), the Committee considers that the measures adopted by the Government cannot be considered as substantially equivalent to these requirements of the Convention. Furthermore, seafarers might not be in a position to identify who is the shipowner at the time of signing the SEA and thereby be fully informed of all the circumstances related to the living and working conditions on board. Furthermore, the situation of temporary working agencies and managing owners has been taken into account by the Convention, which establishes, under Article II(I)(j), that the shipowner has the responsibility for the operation of the ship and takes the duties and responsibilities imposed on them in accordance with the Convention. The purpose of Standard A2.1, paragraph 1(a), is therefore that seafarers do not have to deal with more than one person or entity with respect to their working and living conditions. In light of the above, the Committee requests the Government to adopt the necessary measures to ensure that the Act in preparation ensures full compliance with Standards A2.1, paragraph 1(a), ensuring by the signature of the contract that the shipowner takes responsibility for ensuring conformity of all conditions with the requirements of the MLC, 2006, independently of the person of “employer” from the perspective of contract law.
Regulation 2.2 and the Code. Wages. The Committee notes that Article 15, paragraph 2 of the DML provides that the Maritime Employer shall see to it that payment of salaries takes place in accordance with Standard A2.2 with due observance of Guideline B2.2, in particular the principles laid down in Guideline B2.2.2, paragraph 4. The Committee however notes that the DML does not give effect to the detailed requirements of Regulation 2.2 and Standard A2.2 (regular payment, monthly account and allotments). The Committee requests the Government to provide detailed information on how it ensures that requirements of Standard A2.2 are fully applied.
Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee notes that Article 5, paragraph 4(f) of the DML provides that a Maritime Labour Certificate will only be issued if it appears sufficiently from the observance of the DMCL, Part II drawn up by the Ship's Operator, that the provisions of the Convention are complied with, regarding the working hours and resting times, as referred to in the regulations for the implementation of the STCW Convention applicable in Curacao. The Committee notes however that the Government has not provided any information on the relevant measures implementing the detailed requirements of Standard A2.3. In the absence of information in this regard, the Committee requests the Government to indicate how hours of work or hours of rest are regulated in Curacao and to provide the relevant national provisions that implement the requirements of Standard A2.3, ensuring that either a maximum number of hours of work or a minimum number of hours of rest is fixed and not subject to selective application by shipowners or masters, and that the regime applies to all seafarers including masters.
Regulation 2.4 and the Code. Entitlement to leave. The Committee notes that the DML does not give effect to the detailed requirements of Regulation 2.4 and Standard A2.4. The Committee recalls that, in line with Standard A2.4, paragraphs 1 and 2, each Member shall adopt laws and regulations determining the minimum standards for annual leave for seafarers and that, subject to any collective agreement or laws or regulations providing for an appropriate method of calculation that takes account of the special needs of seafarers in this respect, the annual leave with pay entitlement shall be calculated on the basis of a minimum of 2.5 calendar days per month of employment. The Committee requests the Government to indicate the measures taken to give full effect to these provisions of the Convention.
Regulation 2.5 and the Code. Repatriation. The Committee notes that there are no specific provisions in the DML which recognize seafarers’ entitlement to repatriation. The Committee observes that Curaçao has indicated that it will be bound by the 2014 amendments only after a subsequent express notification of their acceptance, in accordance with Article XV(8)(a) of the Convention. The Committee however reminds the Government that, while Curaçao is not bound by the 2014 amendments, ships flying its flag are required to provide financial security to ensure that seafarers are duly repatriated, in application of Regulation 2.5, paragraph 2. In the absence of information on any detailed standards for seafarers entitlement to repatriation, including the kind of financial security that must be provided by ships flying its flag to cover the right of repatriation, which would have been adopted at the national level to give effect to the Convention, the Committee requests the Government to ensure that the new Act to be adopted fully implements the requirements of Regulation 2.5 and the Code.
Regulation 2.6 and the Code. Seafarer Compensation for the ship’s loss or foundering. The Committee notes that the Government has not provided information on how it implements the requirements of Regulation 2.6 and Standard A2.6. In the absence of information in this regard, the Committee requests the Government to indicate how effect is given to this provision of the Convention.
Regulation 2.7 and the Code. Manning levels. The Committee notes that article 5 (g) of the DML provides that the issuance of the Maritime Labour certificate is subject to compliance with the requirements of the STCW standard on crew composition and number of crewmembers. The Committee notes that only seagoing-ships (measuring 500 GT or more and that undertake an international voyage) have to carry a Maritime Labour Certificate according to the DML. The Committee recalls that Regulation 2.7 and Standard A2.7 require that all ships have a sufficient number of seafarers on board to ensure that ships are operated safely, efficiently and with due regard to security. The Committee notes that articles 18 and 19 give effect to Standard A3.2, paragraphs 3-6 on ship’s cooks. However, the Committee notes that these articles are not implementing Standard A3.2, paragraph 5, that provides that only ships operating with a prescribed manning of less than ten may not be required by the competent authority to carry a fully qualified cook. The Committee requests the Government to provide detailed information on how it ensures that requirements of Regulations 2.7 and Standards A2.7 fully apply to all ships that fly its flag, and to provide information on how complaints or disputes about determinations on the safe manning levels on a ship are investigated and settled (see guidance in Guideline B2.7).
Regulation 3.1 and Standard A3.1, paragraph 1. Accommodation and recreational facilities. Legislation. The Committee notes that the copy of the DMLC, Part I, provided by the Government refers to article 16, paragraphs 1 and 2 of the DML. However, the Committee notes that these provisions are of a general nature and that they do not cover all the detailed requirements under Regulation 3.1 and the corresponding part of the Code. The Committee notes that Article 16, paragraph 4 of the DML provides that “By Ministerial Regulation with general operation, further rules can be set for the implementation of this Article.” The Committee requests the Government to specify if any Regulations were adopted to give effect to the requirements of Regulation 3.1 and Standard A3.1 and to provide further information on how effect is given to the detailed requirements of the Convention respecting accommodation and recreational facilities on board ships flying the Curaçao flag.
Regulation 3.1 and Standard A3.1, paragraph 2. Accommodation and recreational facilities. Implementation. With respect to verification of compliance of configuration of accommodation and recreational facilities, the Committee notes that Instruction note to RO No. 22 on the Maritime Labour Convention, 2006 (date of entry into force: September 1st 2017) published on the MAC’s Website distinguishes two categories of vessels constructed prior to the date when the MLC, 2006 came into force: (i) existing vessels whose keel was laid before the entry into force of the MLC, 2006, already registered in Curaçao, and (ii) existing vessels whose keel was laid before the entry into force of the MLC, 2006, in the process of flagging into the registry of Curaçao. The Committee notes that both categories of existing vessels are not subject to verification of compliance of the configuration of accommodation and recreational facilities with Regulation 3.1 and the Code. The Committee observes that the Accommodation of Crews Convention (Revised), 1949 (No. 92) was applicable in Curaçao prior to the entry into force of the MLC, 2006 and that both categories of existing vessels whose keel was laid before the entry into force of the MLC, 2006, whether already registered or flagging in still fall under the application of Convention No. 92. However, it notes that the Government has not provided information as to how the relevant requirements in Convention No. 92 apply with respect to matters relating to construction and equipment for ships constructed prior to the entry into force of the MLC, 2006, for Curaçao. The Committee recalls that Regulation 3.1, paragraph 2, provides that, for ships constructed before the date of its entry into force, the requirements relating to ship construction and equipment that are set out in Convention No. 92 shall continue to apply to the extent that they were applicable, prior to that date, under the law or practice of the Member concerned. The Committee accordingly requests the Government to provide detailed information concerning the implementing legislation for ships that continue to fall under the application of Convention No. 92.
Regulation 3.1 and Standard A3.1, paragraph 21. Accommodation and recreational facilities. Exemptions. The Committee notes that Article 16, paragraph 3 of the DML provides that, by Decree of the Minister, a Ship’s Operator may deviate from the requirements of Standard A3.1 for a certain ship if: (a) the deviation is desirable in order to meet explicit differences of a philosophical or cultural nature among seafarers, without there being any discrimination; (b) the deviation is reasonable; (c) this does not lead to accommodation spaces of an inferior quality than if there had not been any deviation. The Committee recalls that Standard A3.1, paragraph 19, provides that in the case of ships where there is need to take account, without discrimination, of the interests of seafarers having differing and distinctive religious and social practices, the competent authority may, after consultation with the shipowners’ and seafarers’ organizations concerned, permit fairly applied variations in respect of this Standard on condition that such variations do not result in overall facilities less favourable than those which would result from the application of this Standard. The Committee recalls that Standard A3.1, paragraph 20 allows certain limited exceptions for ships of less than 200 GT, and that paragraph 21 makes clear that any exemptions concerning the requirements of Standard A3.1 are limited to those expressly permitted under the Standard and only for certain circumstances. The Committee requests the Government to provide information on any exemption granted by the Minister under the abovementioned provisions of the DML. The Committee also requests the Government to indicate the measures taken or envisaged to ensure that all exemptions to the application of the Regulation are made after consultation with the shipowners’ and the seafarers’ organizations concerned, and within the limitations provided for under Standard A3.1, paragraphs 19, 20 and 21.
Regulation 4.1 and Standard A4.1, paragraph 4(d). Medical care on board and ashore. Minimum requirements. Medical advice by radio or satellite. The Committee notes that Article 24, paragraph 1 of the DML provides that, in the event of accidents or sicknesses, first-aid measures can be taken immediately through medical advice by radio or satellite. The Committee observes, however, that the DML does not specify whether the medical advice by radio or satellite is available 24 hours a day and free of charge to all ships irrespective of the flag that they fly. The Committee recalls that Standard A4.1, paragraph 4(d) provides for the adoption of laws and regulations requiring coastal States to ensure by a prearranged system that medical advice by radio or satellite communication to ships at sea, including specialist advice, is available 24 hours a day, and that medical advice, including the onward transmission of medical messages by radio or satellite communication between a ship and those ashore giving the advice, is available free of charge to all ships irrespective of the flag that they fly. The Committee requests the Government to indicate how it ensures that Standard A4.1, paragraph 4(d) is fully implemented.
Regulation 4.2 and the Code. Shipowners’ Liability. The Committee notes that the Government has not provided information on any laws and regulations providing seafarers employed on ships with a right to material assistance and support from the shipowner with respect to the financial consequences of sickness, injury or death occurring while they are serving under a SEA or arising from their employment under such agreement, in application of Regulation A4.2 and Standard A4.2.1, paragraphs 1 to 7. The Committee requests the Government to adopt and to provide a copy of the necessary measures to give effect to Regulation 4.2 and Standard A4.2.1, paragraphs 1 to 7.
Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes that articles 21 and 26 of the DML are of a general nature and, although they address some matters, they do not give effect to the detailed requirements of Regulation 4.3 and the Code. The Committee notes that the Government has not provided detailed information on any national laws and regulations and other measures, including the development and promulgation of national guidelines for the management of occupational safety and health, taken to protect seafarers that live, work and train on board ships flying its flag as provided for under Regulation 4.3, paragraph 2. The Committee also notes that, while the DMLC, Part I, indicates that the ship’s operator shall ensure that a safety Committee be established, it does not provide the national provisions incorporating those requirements. The Committee recalls that under Standard A4.3, paragraphs 1 and 2, Members are required to develop concrete measures, such as policies and programmes, and on-board programmes for the prevention of accidents and injuries, as well as requirements for the reporting and investigation of on-board occupational accidents, which detail the respective obligations of shipowners, masters, seafarers and others concerned. The Committee requests the Government to provide information on measures adopted or envisaged to give full effect to the provisions of the Convention. The Committee reminds the Government that it can take into consideration the guidance provided in ILO Guidelines for implementing the occupational safety and health provisions of the Convention in the national measures adopted in the future to give full effect to Regulation 4.3 and Standard A4.3.
Regulation 4.5 and Standard A4.5, paragraph 6. Social security. Comparable benefits for seafarers in the absence of adequate coverage. The Committee notes that, upon ratification of the Convention, Curaçao declared that the branches for which it provides social security protection to seafarers in accordance with Standard A4.5, paragraphs 2 and 10 are medical care; sickness benefit; unemployment benefit; old-age benefit; family benefit; maternity benefit; invalidity benefit and survivors’ benefit. Noting that the Government has not submitted information on the national provisions for the implementation of this Regulation, including details of the benefits provided under each of the eight branches mentioned above, the Committee requests the Government to indicate the measures taken or envisaged to give effect to this Regulation of the Convention. The Committee notes the Government’s indication that there are 15 825 seafarers working on national flags ships. The Committee recalls that, although the primary obligation concerning social security rests with the Member in which the seafarer is ordinarily resident, under Standard A4.5, paragraph 6, Members also have an obligation to give consideration to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers working on board the ships that fly its flag in the absence of adequate coverage in the applicable branches of social security. The Committee requests the Government to provide information on any measures adopted or envisaged to give effect to Standard A4.5, paragraph 6.
Regulation 5.1.2 and Standard A5.1.2, paragraph 1. Flag State responsibilities. Authorization of recognized organizations. Recognition. The Committee notes that Articles 5 to 8 of the DML describe the certification and inspection process of ships registered in Curaçao in accordance with the MLC, 2006 requirements and that Instruction to RO No. 22 Maritime Labour Convention 2006 provides guidance for ROs on implementing the requirements of the MLC, 2006 to whom the Maritime Authority of Curaçao has delegated all certification services in accordance with the MLC, 2006. Furthermore, while MAC’s website indicates that the Kingdom recognizes only class societies that are IACS members and endorsed by the European Maritime Safety Agency and that Curaçao has mandate contracts with all Kingdom ROs, the Committee however notes that the Government does not provide information as to how it reviews the competency and independence of the organizations concerned, as required under Standard A5.1.2, paragraph 1. The Committee recalls that under Standard A5.1.2, paragraph 1, the competent authority shall review the competency and independence of recognized organizations and requests the Government to indicate how it gives effect to this requirement of the Convention.
Regulation 5.1.3 and Standard A5.1.3, paragraphs 5, 6 and 8. Flag State responsibilities. Maritime Labour Certificate and Declaration of Maritime Labour Compliance. Interim Maritime Labour Certificate. The Committee notes that the maximum period of validity of six months of an Interim Maritime Labour Certificate is only mentioned in article 6 of the DML in the case of a ship that changes flag. The Committee requests the Government to indicate how it ensures that the maximum period of validity of six months applies to all cases provided for under Standard A5.1.5, paragraph 6. The Committee further notes that section 6.2 of Instruction to RO No. 22 Maritime Labour Convention 2006 refers to 4 circumstances under which a maritime labour certificate can be issued on an interim basis: (i) to new ships on delivery; (ii) when a ship changes flag; (iii) when a shipowner ceases to assume the responsibility for the operation of a ship; and (iv) in duly justified cases (after consultation with the Administration), if the initial inspection carried out before entry into force of the MLC, 2006 does not result in a ML-certificate. The Committee notes that this last case in which an interim maritime labour certificate can be issued constitutes an additional case which is not provided for by Standard A5.1.3, paragraph 5. The Committee requests the Government to specify the additional circumstances referred to under section 6.2(iv) of Instruction to RO No. 22 that would justify a maritime labour certificate to be issued on an interim basis. The Committee also requests the Government to indicate how it implements the requirement of Standard A5.1.3, paragraph 8 that a full inspection be carried out prior to the expiry of the interim certificate and that an interim maritime labour certificate shall not be valid for more than six months and shall not be renewed.
Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Flag State responsibilities. Declaration of Maritime Labour Compliance. Content. The Committee notes that the copy of the DMLC, Part I mainly provides references to implementing legislation, without providing any details on implementing measures. The Committee draws the Government’s attention to its general observation adopted in 2014 and recalls that paragraph 10(a) of Standard A5.1.3 provides that the DMLC, Part I, drawn up by the competent authority shall not only “identify the national requirements embodying the relevant provisions of this Convention by providing a reference to the relevant national legal provisions” but also provide, “to the extent necessary, concise information on the main content of the national requirements”. The Committee also recalls that paragraph 1 of Guideline B5.1.3 provides guidance with respect to the statement of national requirements, including recommending that “where national legislation precisely follows the requirement stated in this Convention, a reference may be all that is necessary”. However, in many cases a reference will not provide enough information on national requirements where they relate to matters for which the Convention envisages some differences in national practices. In these cases, the DMLC, Part I does not appear to fulfil the purpose for which it, along with the DMLC, Part II, is required under the Convention, which is to help all persons concerned, such as flag State inspectors, authorized officers in port States and seafarers, to check that the national requirements on the 14 listed matters are being properly implemented on board ship. The Committee requests the Government to indicate any steps taken or envisaged to fully implement paragraph 10 of Regulation 5.1.3, giving due consideration to Guideline B5.1.3. The Committee notes that the Government has not provided a copy of the Maritime Labour Certificate, nor examples of an approved DMLC, Part II, that has been drawn up by a shipowner to set out the measures adopted to ensure ongoing compliance with the national requirements and measures proposed to ensure that there is continuous improvement, as provided under Standard A5.1.3, paragraph 10(b) of the Convention. The Committee requests the Government to provide a copy of the Maritime Labour Certificate and one or more examples of an approved DMLC, Part II.
Regulation 5.1.4 and the Code. Flag State responsibilities. Inspection and enforcement. The Committee notes that Instruction to RO No. 22 provides some general requirements with respect to inspectors in line with Regulation 5.1.4 of the Convention. However, it observes that the Government provides no information on the implementation of requirements concerning: (i) qualifications and training of inspectors, status and conditions of service ensuring that they are independent of changes of government and of improper external influences, as well as the standards of confidentiality for inspectors (Standard A5.1.4, paragraphs 3, 6, 10, 11 and 17 of the Convention); (ii) submission by inspectors of a copy of their report to the master of the ship and posting of another on the ship’s notice board for the information of the seafarers, and upon request, transmission of a copy to their representatives (Standard A5.1.4, paragraph 12); and (iii) compensation for any loss of damage from the wrongful exercise of inspectors’ powers (Standard A5.1.4, paragraph 16). The Committee requests the Government to indicate how it gives effect to Standard A5.1.4, paragraphs 3, 6, 10, 11, 12, 16 and 17.
Regulation 5.1.5 and the Code. Flag State responsibilities. On-board Complaints Procedures. The Committee notes that Article 25 of the DML contains provisions with respect to the on-board complaint procedure. It notes, however, the Government’s indication that it has not developed a model for a fair and expeditious and well-documented on-board complaint procedure for ships flying Curaçao’s flag. The Committee therefore requests the Government to take the necessary measures to develop a model for a fair and expeditious and well-documented on-board complaint procedure for ships flying its flag meeting the requirements of Regulation 5.1.5 and the Code and to provide a copy of it.
Regulation 5.1.6. Flag State responsibilities. Marine casualties. The Committee notes that the Government indicates that accidents and incidents are investigated by professional surveyors, based on the IMO Code for Marine Casualties and Incidents. MAC investigation reports are then followed up by investigations and hearings of the Curaçao Committee of Investigation, which is appointed by the Minister of Traffic, Transportation and Urban Planning for a period of 4 years. The investigations are published and filed for policy purposes. For large maritime accidents and disasters, Curaçao can rely on the assistance of the Dutch Safety Council. The Committee, however, observes that the Government has not specified the national provisions that give effect to this requirement of the Convention. The Committee requests the Government to specify the national provisions that give effect to the requirement of Regulation 5.1.6.
Regulation 5.2 and the Code. Port State responsibilities. The Committee observes that Article 28 of the DML provides that the Minister shall ensure that there is supervision of the observance of the Convention by foreign ships that call at the ports of Curaçao, in accordance with the provisions of Regulation 5.2 and Standard A5.2.1. The MAC’s website indicates that Port State Control (PSC) inspections are performed by the MAC on all commercial ships and convention, and non-convention size ships in the commercial ports of Curaçao, under the relevant and ratified IMO instruments and Kingdom regulations. These regulations are currently being implemented into national legislation, the Curaçao Port State Control Ordinance. The Committee notes that Curaçao implements its PSC program as a member of the regional Caribbean MoU on Port State Control (CMuU), and that two guidelines for PSC officers were adopted. Noting however that the Government has not provided a copy of these guidelines and indicated how it gives effect to the detailed requirements of Regulation 5.2 and Standard A5.2.1, the Committee requests the Government to provide detailed information in this regard.
Regulation 5.2.2 and the Code. Port State responsibilities. Onshore seafarer complaint-handling procedures. The Committee notes the Government’s indication that Curaçao has not established procedures for seafarers calling at its ports to report a complaint alleging breach of the requirements of the MLC, 2006. The Committee therefore requests the Government to provide information on the measures taken or envisaged to give effect to Regulation 5.2.2.
Additional documents requested. The Committee notes that the Government has omitted to provide some of the documents requested in the report form. The Committee requests the Government to provide the following documents: an example of the standard wording in medical certificates (Standard A1.2, paragraph 10); an example of the approved document for seafarers’ record of employment (Standard A2.1, paragraphs 1 and 3); the standard form or an example of a seafarers’ employment agreement (Standard A2.1, paragraph 2(a)); the relevant portion of any applicable collective bargaining agreement (Standard A2.1, paragraph 2(b)); a copy of the approved standardized table for shipboard working arrangements (Standard A2.3, paragraphs 10 and 11); a copy of the standard form established by the competent authority for the recording of seafarers’ daily hours of work or their daily hours of rest (Standard A2.3, paragraph 12); a copy of any authorized or registered collective agreement provisions that establish seafarers’ normal working hours or permit exceptions to the established limits (Standard A2.3, paragraphs 3 and 13); a copy of the provisions in any applicable collective agreement which provides for the calculation of the minimum paid annual leave on a basis that differs from a minimum of 2.5 days per month of employment (Standard A2.4, paragraph 2); a copy of the provisions on seafarers’ entitlement to repatriation in any applicable collective bargaining agreements (Standard A2.5.1, paragraph 2); an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners (Regulation 2.5, paragraph 2); an example of the standard medical report form for seafarers (Standard A4.1, paragraph 2; see guidance in Guideline B4.1.2, paragraph 1); a copy of the requirements for the medicine chest and medical equipment and for the medical guide (Standard A4.1, paragraph 4(a); see guidance in Guideline B4.1.1, paragraphs 4 and 5); an example of the kind of documentation that is accepted or issued with respect to the financial security that must be provided by shipowners (Standard A4.2.1, paragraph 1(b)); an example of a document (e.g. Part II of the DMLC outlining a shipowner’s practices or on-board programmes (including risk evaluation) for preventing occupational accidents, injuries and diseases (Standard A4.3, paragraphs 1(c), 2(b) and 8)); a copy of the relevant national guidelines (Regulation 4.3, paragraph 2); a copy of the document(s) used for reporting unsafe conditions or occupational accidents on board ship (Standard A4.3, paragraph 1(d)); a report or other document containing information on the objectives and standards established for your country’s inspection and certification system, including the procedures for its assessment; information on the budgetary allocation during the period covered by this report for the administration of your country’s inspection and certification system and the total income received during the same period on account of inspection and certification services (Regulation 5.1.1, paragraph 5); an example or examples of authorizations given to recognized organizations (Regulation 5.1.2, paragraph 2); if available, a copy of the National Interim Maritime Labour Certificate (Standard A5.1.3, paragraph 5); a copy of the annual reports on inspection activities that have been issued in accordance with Standard A5.1.4, paragraph 13, during the period covered by this report; a standard document issued to or signed by inspectors setting out their functions and powers (Standard A5.1.4, paragraph 7; see guidance in Guideline B5.1.4, paragraphs 7 and 8); a copy of any national guidelines issued to inspectors in implementation of Standard A5.1.4, paragraph 7; a copy of the form used for an inspector’s report (Standard A5.1.4, paragraph 12); a copy of any documentation that is available informing seafarers and interested others about the procedures for making a complaint (in confidence) regarding a breach of the requirements of the Convention (including seafarers’ rights) (Standard A5.1.4, paragraph 5; see guidance in Guideline B5.1.4, paragraph 3); a copy of any national guidelines issued to inspectors in implementation of Standard A5.2.1, paragraph 7; and the following statistical information for the period covered by this report: the number of foreign ships inspected in port; number of more detailed inspections carried out according to Standard A5.2.1, paragraph 1; the number of cases where significant deficiencies were detected; the number of detentions of foreign ships due, wholly or partly, to conditions on board ship that are clearly hazardous to the safety, health or security of seafarers, or constitute a serious or repeated breach of the requirements of MLC, 2006 (including seafarers’ rights); a copy of a document, if any, that describes the onshore complaint-handling procedures (Standard A5.2.2, paragraph 6).
[The Government is asked to reply in full to the present comments in 2023.]
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